[TEXT]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 25, 1994
FIRST OF AMERICA BANK CORPORATION
(Exact name of Registrant as specified in its Charter)
Michigan 1-10534 38-1971791
(State or other jurisdiction (Commission (I.R.S. Employer
of Incorporation or File Number) Identification No.)
Organization)
211 S. Rose, Kalamazoo, Michigan 49007
Address of principal Executive Offices)
Registrant's telephone number, including area code 616-376-9000
Item 5. Other Events
(1) Filed herewith as Exhibit 99.1 is the Underwriting
Agreement, dated July 19, 1994, between Registrant and
the Underwriters named in Schedule II thereto.
(2) Filed herewith as Exhibit 99.2 is a form of First of
America Bank Corporation's 7-3/4% Subordinated Notes
Due July 15, 2004.
(3) Filed herewith as Exhibit 99.3 is the First
Supplemental Indenture, dated as of July 1, 1994,
between Registrant and Continental Bank as Trustee.
Item 7. Financial Statements and Exhibits
(99.1) Underwriting Agreement between Registrant and
Underwriters.
(99.2) Form of 7-3/4% Subordinated Notes Due July 15,
2004.
(99.3) First Supplemental Indenture, dated as of July 1,
1994, between Registrant and Continental Bank as
Trustee.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, First of America has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
FIRST OF AMERICA BANK CORPORATION
REGISTRANT
Date: July 25, 1994 /s/ Thomas W. Lambert
Thomas W. Lambert
Executive Vice President and Chief
Financial Officer
(Principal Financial and Accounting
Officer)
EXHIBIT INDEX
(99.1) Underwriting Agreement between Registrant and
Underwriters.
(99.2) Form of 7-3/4% Subordinated Notes Due July 15,
2004.
(99.3) First Supplemental Indenture, dated as of July 1,
1994, between Registrant and Continental Bank as
Trustee.
EXHIBIT (99.1)
FIRST OF AMERICA BANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
July 19, 1994
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
First of America Bank Corporation, a Michigan corporation
(the "Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting
as representatives (the "Representatives"), the principal amount
of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture dated as of
November 1, 1991, between the Company and Continental Bank, as
trustee (the "Trustee"), as supplemented by a First Supplemental
Indenture dated as of July 1, 1994 (such indenture, as
supplemented, the "Indenture"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer
to such firm or firms.
The Company has filed with the Securities and Exchange
Commission (the "Commission") registration statements on Form S-3
(Nos. 33-42226 and 33-49813) relating to the Securities, and the
offering thereof from time to time in accordance with Rule 415
under the Securities Act of 1933, as amended (the "1933 Act"),
and has filed such amendments thereto as shall have been required
to the date hereof. Such registration statements as amended have
been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statements and the
prospectuses relating to the sale of Securities by the Company
constituting a part thereof, including all documents incorporated
therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus",
respectively.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter
as follows:
(i) The Registration Statement and the Prospectus, at
the time the Registration Statement became effective, at the
date of the filing of the Company's Annual Report on Form
10-K for the year ended December 31, 1993 (the "10-K filing
date") and as of the date hereof, complied, and complies, in
all material respects with the requirements of the 1933 Act
and the rules and regulations thereunder (the "1933 Act
Regulations") and the 1939 Act. The Registration Statement,
at the time it became effective, at the 10-K filing date and
as of the date hereof, did not, and does not, contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus,
at the time the Registration Statement became effective, at
the 10-K filing date and as of the date hereof, did not, and
does not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were or are made, not misleading; provided,
however, that the representations and warranties in this
subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished
to the Company in writing by any Underwriter through you
expressly for use in the Registration Statement or the
Prospectus or to that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of the Trustee.
(ii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations
of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration
Statement and any amendments thereto became or become
effective and at the 10-K filing date will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were or are made, not
misleading.
(iii) The independent auditors who examined or audited
the consolidated financial statements and supporting
schedules incorporated by reference in the Registration
Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) The consolidated financial statements incorporated
by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as
at the dates indicated and the consolidated results of their
operations and cash flows for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis during the periods involved, except as
otherwise indicated therein; and the supporting schedules
included in the Registration Statement present fairly the
information required to be stated therein.
(v) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary
course of business, (B) there have been no transactions
entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which
are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for
regular quarterly dividends on the Company's Common Stock,
$10.00 par value per share (the "Common Stock") there has
been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Michigan with corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement; the Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended (the "Bank Holding Company Act"); and the Company is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(vii) Each subsidiary of the Company which is a
"significant subsidiary" as defined in Rule 405 of
Regulation C of the 1933 Act Regulations (a "Significant
Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and
to conduct its business as described in the Registration
Statement and is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so
qualify or be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise;
except as otherwise stated in the Registration Statement,
all of the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable (subject to the
provisions of Section 55 of Title 12 of the United States
Code in the case of Significant Subsidiaries which are
national banking associations) and, except for director's
qualifying shares, is owned by the Company, directly or
through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(viii) The Securities have been duly authorized for
issuance and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the
provisions of this Agreement and of the Indenture against
payment of the consideration therefor in accordance with
this Agreement, the Securities will be valid and legally
binding obligations of the Company enforceable in accordance
with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles, and will be entitled to the benefits of the
applicable Indenture; and the Indenture conforms in all
material respects to all statements relating thereto
contained in the Prospectus.
(ix) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation,
agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets
of the Company or any of its Significant Subsidiaries is
subject in a manner which could reasonably be expected to
materially and adversely affect the Company and the
subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement and
the Indenture by the Company, and the consummation by the
Company of the transactions contemplated herein and therein
have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company or any of its Significant Subsidiaries
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its Significant Subsidiaries is a
borrowing party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or
any of its Significant Subsidiaries is subject, nor will
such action result in any violation of the provisions of the
charter or by-laws of the Company or any applicable law,
administrative regulation or administrative or court decree.
(x) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in any material
adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one
enterprise, or which might reasonably be expected to
materially and adversely affect the properties or assets of
the Company and its subsidiaries considered as one
enterprise or which might reasonably be expected to
materially and adversely affect the consummation of this
Agreement; all pending legal or governmental proceedings to
which the Company or any subsidiary of the Company is a
party or of which any of their respective property or assets
is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental
to the business of the Company or any such subsidiary, are,
considered in the aggregate, not material to the Company and
its subsidiaries considered as one enterprise; and there are
no contracts or documents of the Company or any of its
subsidiaries which are required to be filed or incorporated
by reference as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not
been so filed or incorporated by reference.
(xi) The Company and its Significant Subsidiaries own
or possess, or can acquire on reasonable terms, adequate
trademarks, service marks and trade names necessary to
conduct the business now operated by them, and neither the
Company nor any of its Significant Subsidiaries has received
any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in
the aggregate, would result in any material adverse change
in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xii) No authorization, approval, consent, order or
decree of any court or governmental authority or agency is
required in connection with the offering, issuance or sale
of the Securities hereunder, except such as may be required
under the 1933 Act, the 1933 Act Regulations, the 1939 Act
(which qualifications have been obtained) or state
securities laws.
(xiii) The Company and its Significant Subsidiaries
possess such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now
operated by them, and neither the Company nor any of its
Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of
any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xiv) This Agreement has been duly executed and
delivered by the Company.
Any certificate signed by the Chairman, Vice Chairman,
President or any Executive Vice President of the Company and
delivered to you or to counsel for the Underwriters in connection
with an offering of Securities shall be deemed a representation
and warranty by the Company to each Underwriter participating in
each such offering as to the matters covered thereby.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at the office, on the date and at the
time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof in the manner
set forth in Schedule I hereto. The Securities shall be in the
form of a global certificate representing the entire amount of
such Securities.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior
to the Closing Date.
4. Covenants of the Company. The Company covenants with
each Underwriter, as follows:
(a) Immediately following the execution of this
Agreement, the Company will prepare a supplement to the
Prospectus (the "Prospectus Supplement") setting forth the
principal amount of Securities covered thereby, the terms of
such Securities not otherwise specified in the Prospectus,
the names of the Underwriters participating in the offering
and the principal amount of Securities which each severally
has agreed to purchase, the names of the Underwriters acting
as co-managers in connection with the offering, the price at
which the Securities are to be purchased by the Underwriters
from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other
information as you and the Company deem appropriate in
connection with the offering of the Securities. The Company
will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 of the
1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus and such
Prospectus Supplement as you shall reasonably request.
(b) The Company will notify you immediately, and
confirm the notice in writing, (i) of the effectiveness of
any post-effective amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for
filing of any supplement to the Prospectus or any document
to be filed pursuant to the 1934 Act, (iii) of the receipt
of any comments from the Commission, (iv) of any request by
the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus
or for additional information, and (v) of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(c) The Company will give you notice of its intention
to file or prepare any amendment to the Registration
Statement (including any post-effective amendment) or any
amendment or supplement to the Prospectus, whether pursuant
to the 1934 Act, the 1933 Act or otherwise, and will furnish
you with copies of any such amendment or supplement or other
document proposed to be filed a reasonable amount of time
prior to such proposed filing and will not file any such
amendment or supplement or other document or use any such
prospectus to which you or your counsel shall object.
(d) The Company will deliver to you a conformed copy
of the Registration Statement and of each amendment thereto
for each of the Underwriters.
(e) If at any time when the Prospectus is required by
the 1933 Act to be delivered in connection with sales of the
Securities any event shall occur or condition exist as a
result of which it is necessary, in the opinion of your
counsel or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such counsel,
at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing
documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission to
make the Registration Statement comply with such
requirements.
(f) The Company will endeavor, in cooperation with
you, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other
jurisdictions of the United States as you may designate; and
will file such statements and reports as may be required by
the laws of such jurisdictions to continue such
qualification in effect for as long as may be required for
the distribution of the Securities. The Company will
promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any such state
or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(g) The Company will make generally available to its
security holders as soon as practicable, but not later than
90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a twelve
month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date"
(as defined in said Rule 158) of the Registration Statement.
(h) The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Until the business day following the Closing Date,
the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering of,
any debt securities covered by the Registration Statement or
by any other registration statement filed under the Act.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall
be subject to the accuracy of the representations and warranties
on the part of the Company contained herein as of the date
hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference
therein) and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) At the Closing Date (i) no stop order suspending
the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, or (ii) the
rating assigned by any nationally recognized statistical
rating organization to any debt securities or preferred
stock of the Company shall not have been lowered since the
execution of this Agreement nor shall any such rating
organization have publicly announced that it has placed any
debt securities or preferred stock of the Company on what is
commonly termed a "watch list" for possible downgrading, or
(iii) there shall not have come to your attention any facts
that would cause you to believe that the Prospectus,
together with the Prospectus Supplement, at the time it was
required to be delivered to a purchaser of the Securities,
contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing
at such time, not misleading.
(b) At the applicable Closing Date you shall have
received:
(1) The favorable opinion, dated as of the
Closing Date, of Howard & Howard Attorneys, P.C.,
counsel for the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Michigan.
(ii) The Company has corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Registration Statement.
(iii) The Company is duly registered as a
bank holding company under the Bank Holding
Company Act; to the best of their knowledge and
information, the Company is duly qualified as a
foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is required, except when the failure
to so qualify or be in good standing would not
have a material adverse effect on the condition,
financial or otherwise, or the earnings, business
affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(iv) Each Significant Subsidiary of the
Company has been duly incorporated and is validly
existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease
and operate its properties and to conduct its
business as described in the Registration
Statement and, to the best of their knowledge and
information, is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, whether by reason of
the ownership or leasing of property or the
conduct of business, except where the failure to
so qualify or be in good standing would not have a
material adverse effect on the condition,
financial or otherwise, or the earnings or
business affairs or business prospects of the
Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding
capital stock of each such Significant Subsidiary
has been duly authorized and validly issued, is
fully paid and non-assessable (subject to the
provisions of Section 55 of Title 12 of the United
States Code in the case of Significant
Subsidiaries which are national banking
associations) and, to the best of their knowledge
and information, is owned by the Company, directly
or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(v) The Indenture has been duly and validly
authorized, executed and delivered by the Company
and constitutes the valid and binding agreement of
the Company, enforceable in accordance with its
terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting
enforcement of creditors' rights or by general
equity principles.
(vi) The Securities are in the form
contemplated by the Indenture, and have been duly
and validly authorized by all necessary corporate
action and, when executed and authenticated as
specified in the Indenture and delivered against
payment pursuant to this Agreement will be valid
and binding obligations of the Company enforceable
in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement or
creditors' rights or by general equity principles;
and the Securities will be entitled to the
benefits of the Indenture.
(vii) The Indenture and the Securities
conform in all material respects to the
descriptions thereof in the Prospectus and the
Prospectus Supplement.
(viii) The Indenture is qualified under the
1939 Act.
(ix) This Agreement has been duly authorized,
executed and delivered by the Company.
(x) No authorization, approval, consents,
order or decree of any court or governmental
authority or agency is required in connection with
the sale of the Securities under this Agreement,
except such as may be required under the 1933 Act,
the 1939 Act, the 1933 Act Regulations or state
securities laws.
(xi) The Registration Statement is effective
under the 1933 Act and, to the best of their
knowledge and information, no stop order
suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by
the Commission.
(xii) At the time the Registration Statement
became effective and at the date hereof, the
Registration Statement (other than the financial
statements, supporting schedules and other
financial and statistical data included therein,
as to which no opinion need be rendered) complied
and complies as to form in all material respects
with the requirements of the 1933 Act, the 1939
Act and the 1933 Act Regulations.
(xiii) Each document filed pursuant to the
1934 Act (other than the financial statements and
other financial and statistical data included
therein, as to which no opinion need be rendered)
and incorporated by reference in the Prospectus
complied when so filed as to form in all material
respects with the 1934 Act and the rules and
regulations thereunder.
(xiv) To the best of their knowledge and
information, there are no legal or governmental
proceedings pending or threatened which are
required to be disclosed in the Registration
Statement, other than those disclosed therein, and
all pending legal or governmental proceedings to
which the Company or any subsidiary of the Company
is a party or to which any of their property or
assets is subject which are not described in the
Registration Statement, including ordinary routine
litigation incidental to the business of the
Company or any such subsidiary, are, considered in
the aggregate, not material to the Company and its
subsidiaries considered as one enterprise.
(xv) The information in the Prospectus under
"Description of Securities", "Certain Provisions
of the Company's Articles of Incorporation and By-
Laws" and, in the Prospectus Supplement under
"Description of the Notes", to the extent that
such information constitutes matters of law,
summaries of legal matters, documents or
proceedings, or legal conclusions, has been
reviewed by them and is correct in all material
respects.
(xvi) To the best of their knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred
to in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed or incorporated by
reference as exhibits thereto; the descriptions
thereof or references thereto are correct, and no
default exists in the due performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease
or other instrument so described, referred to, or
filed or incorporated by reference.
(xvii) To the best of their knowledge and
information, the execution and delivery of this
Agreement and the Indenture by the Company and the
consummation by the Company of the transactions
contemplated herein and therein will not conflict
with or constitute a breach of, or default under,
or result in the creation or imposition of any
lien, charge or encumbrance upon any property or
assets of the Company or any of its Significant
Subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it
or any of them may be bound, or to which any of
the property or assets of the Company or any of
its Significant Subsidiaries is subject, nor will
such action result in any violation of the
provisions of the charter or by-laws of the
Company or any applicable law, administrative
regulation or administrative or court order or
decree.
(2) The favorable opinion, dated as of Closing
Date, of Brown & Wood, counsel for the Underwriters,
with respect to the matters set forth in (i), (v) to
(ix), inclusive, (xi) and (xii), of subsection (b)(1)
of this Section.
(3) In giving their opinions required by
subsections (b)(1) and (b)(2), respectively, of this
Section, Howard & Howard Attorneys, P.C. and Brown &
Wood shall each additionally state that nothing has
come to their attention that would lead them to believe
that the Registration Statement (except for financial
statements and schedules and other financial data
included or incorporated by reference therein as to
which such counsel need make no statement) at the time
it became effective, or if an amendment to the
Registration Statement has been filed by the Company
with the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of the
most recent such filing, and as of the date hereof,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, as amended or
supplemented at the date hereof and at the Closing
Date, contained or contains an untrue statement of
material fact or omitted or omits to state a material
fact necessary in order to make the statements therein,
in the light of the circumstances under which they were
or are made, not misleading.
(4) In giving their opinions required by
subsection (b)(1) and (b)(2), respectively, of this
Section, Howard & Howard Attorneys, P.C. may rely as to
matters of New York law upon the opinion of Brown &
Wood and Brown & Wood may rely as to matters of
Michigan law upon the opinion of Howard & Howard
Attorneys, P.C.
(c) At the Closing Date there shall not have been,
since the date hereof or since the respective dates as of
which information is given in the Registration Statement,
any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary
course of business, and you shall have received a
certificate of the Chairman and Chief Executive Officer or
the President and Chief Operating Officer of the Company and
of the Chief Financial Officer and Treasurer of the Company,
dated as of such Closing Date, to the effect that (i) there
has been no such material adverse change, (ii) the
representations and warranties of the Company contained in
Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of such
Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be
complied with or satisfied at or prior to such Closing Date,
and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the
Commission.
(d) At the time of the execution of this Agreement and
at the Closing Date, you shall have received from KPMG Peat
Marwick a letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are
independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) in their opinion the
consolidated financial statements and supporting schedules
audited by them and included or incorporated by reference in
the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations with respect to
registration statement on Form S-3 and the 1934 Act and the
1934 Act Regulations; (iii) based upon limited procedures
set forth in detail in such letter, nothing has come to
their attention which causes them to believe that (A) the
unaudited consolidated financial statements and supporting
schedules of the Company and its subsidiaries incorporated
by reference in the Registration Statement and Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the
1934 Act Regulations or are not fairly presented in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements incorporated by reference in
the Registration Statement, (B) at a specified date not more
than five days prior to the date of such letter, there has
been any change in the capital stock of the Company or any
increase in the consolidated long term debt of the Company
and its subsidiaries or any decrease in the total assets of
the Company and its subsidiaries, in each case as compared
with the amounts shown in the most recent consolidated
balance sheet incorporated by reference in the Registration
Statement or, during the period from a specified date not
more than five days prior to the date of such letter, there
were any decreases, as compared with the corresponding
period in the preceding year, in net interest income, net
interest income after provision for possible loan loss, non-
interest income, net income or net income applicable to
common stock of the Company and its subsidiaries as compared
with the corresponding period in the preceding year except
in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the
examination referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting
an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by
reference in the Registration Statement and Prospectus and
which are specified by you and have found such amounts,
percentages and financial information to be in agreement
with the relevant accounting, financial and other records of
the Company and its subsidiaries identified in such letter.
(e) At the Closing Date, counsel for the Underwriters
shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be satisfactory
in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by you by notice to the Company at
any time at or prior to the Closing Date, and such termination
shall be without liability of any party to any other party except
as provided in Section 4 hereof.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the 1933 Act or the 1934 Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the 1933 Act, the 1934 Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration
of the Securities as originally filed or in any amendment
thereof, or in the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission (a) made therein in reliance upon
and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation thereof or (b) made or omitted from the Statement of
Eligibility and Qualification of the Trustee on Form T-1, and
(ii) such indemnity with respect to the Prospectus shall not
inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such Underwriter did not send a
copy of the Prospectus (or the Prospectus as amended or
supplemented) to such person, excluding documents incorporated
therein by reference at or prior to the confirmation of the sale
of such Securities in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact
contained in the Prospectus was corrected in the Prospectus as
amended or supplemented. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the 1933 Act or
the 1934 Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page
and under the heading "Underwriting" in the Prospectus Supplement
constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents
referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section ll(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls an
Underwriter within the meaning of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the 1933
Act or the 1934 Act, each officer of the Company who shall have
signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Representations, Warranties and Agreements to Survive
Delivery and Payment. All representations, warranties and
agreements contained in this Agreement or contained in
certificates of executive officers of the Company submitted
pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Securities to the
Underwriters and payment therefor to the Company.
10. Termination of Agreement. This Agreement may be
terminated by you immediately upon notice to the Company, at any
time at or prior to the Closing Date (i) if there shall have
been, since the date hereof or since the respective dates as of
which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or
(ii) if there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international
calamity or crisis the effect of which is such as to make it, in
your reasonable judgment after consultation with the Company,
impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in the Common
Stock of the Company shall have been suspended by the Commission
or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, by either of said Exchanges
or by order of the Commission or any other governmental
authority, or if a banking moratorium shall have been declared by
Federal, New York or Michigan authorities, or (iv) if the rating
assigned by any nationally recognized statistical rating
organization to any debt securities or preferred stock of the
Company as of the date hereof shall have been lowered since the
date hereof or if any such rating organization shall have
publicly announced that it has placed any debt securities or
preferred stock of the Company on what is commonly termed a
"watch list" for possible downgrading. In the event of any such
termination, (x) the covenants set forth in Section 3 with
respect to any offering of Securities shall remain in effect so
long as any Underwriter owns any such Securities purchased from
the Company pursuant to this Agreement and (y) the covenant set
forth in Section 3(g), the provisions of Section 6, the indemnity
agreement and contribution provisions set forth in Section 7 and
the provisions of Sections 9 and 13 shall remain in effect.
11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York
10167, Attention: Chief Legal Officer; notices to the Company
shall be directed to it at 211 South Rose Street, Kalamazoo,
Michigan 49007, Attention: Thomas W. Lambert, Executive Vice
President and Chief Financial Officer.
12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters and the Company, and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person,
firm or corporation, other than the parties hereto and thereto
and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors
and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of
such purchase.
13. Governing Law. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be
performed in said State.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
FIRST OF AMERICA BANK CORPORATION
By:______________________________
Thomas W. Lambert
Executive Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
BEAR, STEARNS & CO. INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHEMICAL SECURITIES INC
KEEFE, BRUYETTE & WOODS, INC.
BY: BEAR, STEARNS & CO. INC.
By: ________________________
SCHEDULE I
Underwriting Agreement dated July 19, 1994
Registration Statements Nos. 33-42226 and 33-49813
Representatives: Bear, Stearns & Co. Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chemical Securities Inc.
Keefe, Bruyette & Woods, Inc.
Title, Purchase Price and Description of Securities:
Title: 7-3/4% Subordinated Notes Due July 15, 2004.
Principal amount: $200,000,000.
Purchase price: 98.697% (plus accrued interest from July
15, 1994) in same day funds.
Sinking fund provisions: none.
Redemption provisions: none.
Other provisions: none.
Closing Date, Time and Location: July 26, 1994, 10:00 a.m.,
New York City time, Offices of Brown & Wood.
Delayed Delivery Arrangements: none
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
Bear, Stearns & Co. Inc. . . . . . . . $ 80,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . 80,000,000
Chemical Securities Inc. . . . . . . . 20,000,000
Keefe, Bruyette & Woods, Inc.. . . . . . 20,000,000
____________
Total . . . . . . . . . . . . $200,000,000
____________
____________
EXHIBIT (99.2)
CUSIP 318906 AB O
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
THIS NOTE IS AN UNSECURED SUBORDINATED OBLIGATION OF FIRST
OF AMERICA BANK CORPORATION ONLY, AND IS NOT A DEPOSIT OR AN
OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY.
THIS NOTE IS NOT INSURED BY THE FDIC, BANK INSURANCE FUND,
SAVINGS ASSOCIATION INSURANCE FUND, OR ANY OTHER FEDERAL AGENCY.
FORM OF SUBORDINATED DEBT SECURITY
FIRST OF AMERICA BANK CORPORATION
7-3/4% SUBORDINATED NOTE DUE JULY 15, 2004
First of America Bank Corporation, a Michigan corporation
(herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of
_________________________ Dollars on July 15, 2004 at the office
or agency of the Company referred to below, and to pay interest
thereon on January 15, 1995, and semi-annually thereafter on July
15 and January 15 (each, an "Interest Payment Date") of each
year, from July 15, 1994, or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, at the rate of 7-3/4% per annum, until the principal hereof
is paid or duly provided for. The interest so payable and
punctually paid or duly provided for, on any Interest Payment
Date, will, as provided in the Indenture referred to on the
reverse hereof, be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the December 31 or June 30 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment
Date. Any such interest which is payable, but is not so
punctually paid or duly provided for on any Interest Payment Date
shall forthwith cease to be payable to the registered Holder on
such Regular Record Date, and may be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holders of Notes of this series not
less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully
provided in such Indenture. Payment of the principal of (and
premium, if any) and interest and Additional Amounts on this Note
will be made at the Corporate Trust Office of the Trustee
referred to on the reverse side hereof, or at such office or
agency of the Company maintained for that purpose, in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register.
This Note is one of the series of 7-3/4% Subordinated Notes
Due July 15, 2004 (the "Notes"). Reference is hereby made to the
further provisions of this Note set forth on the reverse hereof
including, without limitation, provisions for subordinating the
payment of the principal of and interest on the Notes of this
series to the prior payment in full of all Senior Indebtedness as
defined in the Indenture. Such further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse side hereof or
an Authenticating Agent under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized
officers, this Note shall not be entitled to any benefit under
said Indenture, or be valid or obligatory for any purpose.
This Note shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
[Seal] FIRST OF AMERICA BANK
CORPORATION
By:_______________________________________
Thomas W. Lambert
Its: Executive Vice President and
Chief Financial Officer
Dated: July 26, 1994
Attest:____________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein
referred to in the within-mentioned Indenture.
CONTINENTAL BANK
As Trustee
By:_____________________________________
K. L. Clark
Its: Trust Officer
REVERSE OF SECURITY
FIRST OF AMERICA BANK CORPORATION
7-3/4% SUBORDINATED NOTE DUE JULY 15, 2004
This Note is one of a duly authorized issue of Notes of the
Company (herein called the "Notes"), issued and to be issued in
one or more series under the Subordinated Indenture dated as of
November 1, 1991 as supplemented by the First Supplemental
Indenture dated as of July 1, 1994 (collectively herein called
the "Indenture"), between the Company and Continental Bank, as
Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for
a statement of the respective rights thereunder of the Company,
the Trustee and the Holders of the Notes, and of the terms upon
which the Notes are, and are to be, authenticated and delivered.
This Note is one of the series designated by its title on the
face hereof, limited in aggregate principal amount to
$200,000,000.
The indebtedness evidenced by the Notes is, to the extent
and in the manner provided in the Indenture, subordinate and
subject in right of payment to the prior payments in full of the
principal of (and premium, if any) and interest and Additional
Amounts on all Senior Indebtedness as defined in the Indenture,
whether now or hereafter outstanding, and this Note is issued and
subject to such provisions, and each Holder of this Note, by
accepting the same, agrees, expressly for the benefit of the
present and future Holders of the Senior Indebtedness, to and
shall be bound by such provisions, and authorizes the Trustee in
his behalf to take such action as may be necessary or appropriate
to effectuate such subordination as provided in the Indenture and
appoints the Trustee his attorney-in-fact for such purpose.
This Note is not subject to redemption prior to maturity.
If an Event of Default (as defined in the Indenture) with
respect to the Notes shall occur and be continuing, the principal
of the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture does not provide for any right of acceleration
of the payment of the principal of a series of Notes upon a
default in the payment of principal or interest or a default in
the performance of any covenant or agreement in the Notes of a
particular series or in the Indenture. Upon occurrence of
nonpayment of interest or principal, the Holder of a Note (or the
Trustee under the Indenture on behalf of the Holders of all of
the series of Notes) may, subject to certain limitations and
conditions, seek to enforce payment of such interest or
principal.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the
Holders of the Notes of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate
principal amount of the Notes at the time Outstanding, as defined
in the Indenture, of each series affected thereby. The Indenture
also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes of each
series at the time Outstanding, on behalf of the Holders of all
Notes of each series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of the
Note or the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the
principal of and interest on this Note at the time, place, and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register, upon surrender of this Note
for registration of transfer at the Corporate Trust Office of the
Trustee located in the City of Chicago, Illinois or at such
office or agency of the Company maintained for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Register
duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes of
this series of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes of this series are
exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange of Notes of this series, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection herewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
Notes of this series shall rank pari passu with Securities
heretofore or hereafter issued under the Indenture.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
EXHIBIT (99.3)
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 1, 1994,
by and between FIRST OF AMERICA BANK CORPORATION, a Michigan
corporation (the "Company"), and CONTINENTAL BANK, a banking
corporation organized under the laws of the State of Illinois
(formerly Continental Bank, National Association, a national
banking association), as Trustee under the Indenture hereinafter
referred to ("Trustee");
WITNESSETH:
WHEREAS, the Company has heretofore duly executed and
delivered to the Trustee its Subordinated Indenture dated as of
November 1, 1991 (the "Indenture"), to provide for the issuance
from time to time by the Company of securities; and
WHEREAS, the Company desires to execute and deliver to the
Trustee a supplemental indenture by the terms of which all
Holders from time to time of Securities issued from and after the
date of such supplemental indenture shall be bound; and
WHEREAS, all acts and things necessary to constitute these
presents a valid supplemental indenture and agreement have been
done and performed, and the execution of this First Supplemental
Indenture has in all respects been duly authorized, and the
Company and the Trustee, in the exercise of the legal right and
power vested in each, execute this First Supplemental Indenture.
NOW THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all
Holders of Securities from and after the date hereof as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. For all purposes of this First Supplemental
Indenture, except as otherwise expressly provided in this Article
One or unless the context otherwise requires, terms used herein
that are defined in the Indenture, either directly or by
reference therein, have the meanings ascribed to them therein.
Section 1.02. The definition of "Senior Indebtedness" is
hereby deleted and in its place is inserted the following:
"Senior Indebtedness" means the principal of and
premium, if any, and interest on all indebtedness and other
obligations of the Company, whether outstanding at the date
hereof or thereafter incurred or created, except Securities
issued prior to July 1, 1994 or such indebtedness or
obligations as are by their terms expressly stated to be
subordinated in right of payment to, or to rank pari passu
with, the Securities or are identified in a Board Resolution
or any indenture supplemental hereto as subordinated in
right of payment to, or to rank pari passu with, the
Securities.
ARTICLE TWO
REMEDIES
Section 2.01. Section 501 of the Indenture is deleted in
its entirety and in its place is inserted the following:
Section 501. Events of Default.
"Event of Default," wherever used herewith with respect
to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and
whether it shall be voluntary or be effected by operation of
law pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body);
(1) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of
the Company in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging it a bankrupt or
insolvent or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of
its property, ordering the winding-up or liquidation of
its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive
days; or
(2) the Company shall commence a voluntary case
under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in any
involuntary case under any such law, or shall consent
to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company, or
for any substantial part of its property.
If an Event of Default with respect to the Securities
of any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and
the rights of the Holders of Securities of such series and
any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
ARTICLE THREE
CONSOLIDATION, MERGER AND SALES
Section 3.01. The words "(including, without limitation,
default under Section 1006)" appearing in the fourth and fifth
lines of Section 801(2) are hereby deleted.
ARTICLE FOUR
COVENANTS
Section 4.01. Section 1006 is hereby deleted in its
entirety, and the reference to Section 1006 in the second line of
Section 1009 is also hereby deleted.
ARTICLE FIVE
OBLIGATIONS CONCERNING TRUSTEE
Section 5.01. The Trustee hereby accepts this First
Supplemental Indenture, but only upon the terms and conditions
set forth in the Indenture as supplemented hereby. The Trustee
shall be entitled to, may exercise, and shall be protected by,
where, and to the full extent that the same are applicable, all
the rights, powers, privileges, immunities and exemptions
provided in the Indenture as if the provisions concerning the
same were incorporated herein at length. The recitals and
statements in this First Supplemental Indenture shall be taken as
statements of the Company and shall not be considered as made by,
or imposing any obligation or liability upon, the Trustee, nor
shall the Trustee be held responsible for the legality or
validity of this First Supplemental Indenture, and the Trustee
makes no covenant or representation and shall not be responsible
as to or for the effect, authorization, execution, delivery or
validity hereof.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. This First Supplemental Indenture shall take
effect, without further action of the parties hereto, immediately
upon execution by all the parties and shall be binding upon all
Holders of Securities issued subsequent to the date hereof.
Securities issued prior to the date hereof shall be entitled to
the benefits of the Indenture as originally executed, and the
terms and provisions of this First Supplemental Indenture shall
not be applicable to such Securities.
Section 6.02. Except as herein expressly provided, the
Indenture is in all respects ratified and confirmed and all the
terms, provisions and conditions thereof shall be and remain in
full force and effect.
Section 6.03. The recitals contained herein shall be taken
as the statements of the Company and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this First
Supplemental Indenture.
Section 6.04. This First Supplemental Indenture may be
executed in several counterparts, and each of such counterparts
shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 6.05. This First Supplemental Indenture shall be
governed and construed in accordance with the laws of the State
of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, all as of the
day and year first above written.
FIRST OF AMERICA BANK CORPORATION
[Corporate Seal]
Attest:__________________
By:___________________________________
Thomas W. Lambert
Its: Executive Vice President and
Chief Financial Officer
CONTINENTAL BANK
[Corporate Seal]
Attest:__________________
By:_______________________________________
K. L. Clark
Its: Trust Officer
STATE OF MICHIGAN )
: ss.
COUNTY OF KALAMAZOO )
On the 22nd day of July, 1994, before me personally came
Thomas W. Lambert, to me known, who, being by me duly sworn, did
depose and say that he is an Executive Vice President of FIRST OF
AMERICA BANK CORPORATION, a Michigan corporation, one of the
persons described in and who executed the foregoing instrument;
that he knows the seal of the Corporation; that the seal affixed
to said instrument is said Corporation's seal; that it was so
affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
___________________________________
Notary Public
STATE OF ILLINOIS )
: ss.
COUNTY OF COOK )
On the ___ day of July, 1994, before me personally came K.
L. Clark, to me known, who, being by me duly sworn, did depose
and say that she is a Trust Officer of CONTINENTAL BANK, a
banking corporation, one of the persons described in and who
executed the foregoing instrument; that she knows the seal of the
association; that the seal affixed to said instrument is said
association's seal; that it was so affixed by authority of the
Board of Directors of said association; and that she signed her
name thereto by like authority.
[NOTARIAL SEAL] ______________________________
Notary Public